United States v. Montgomery

• Decision Date: 17 December 2012
• Docket Number: No. 12–1613.,12–1613.
• Citation: 701 F.3d 1218
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Robert MONTGOMERY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

701 F.3d 1218

UNITED STATES of America, Plaintiff–Appellee,

v.Robert MONTGOMERY, Defendant–Appellant.

No. 12–1613.

United States Court of Appeals,

Eighth Circuit.

Submitted: Sept. 21, 2012.

Filed: Dec. 17, 2012.

Travis D. Poindexter, Asst. Fed. Public Defender, Kansas City, MO, argued (Raymond C. Conrad, Jr., Fed. Public Defender, on the brief), for appellant.

Robert Montgomery, Terre Haute, IN, pro se.

David A. Barnes, Asst. U.S. Atty., Kansas City, MO, argued (David M. Ketchmark, Acting U.S. Atty., Philip M. Koppe, Asst. U.S. Atty., on the brief), for appellee.

Before BYE, GRUENDER, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Robert Montgomery was charged with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Montgomery was convicted after a jury trial and was sentenced to 188 months imprisonment. Montgomery appeals his conviction, arguing that the district court ¹ erred in denying his motion for acquittal. Montgomery also appeals his sentence, arguing that his prior Missouri conviction for second-degree domestic assault was not a predicate offense under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and that his sentence was both substantively unreasonable under 18 U.S.C. § 3553(a) and grossly disproportionate to his crime in violation of the Eighth Amendment.² We affirm.

I.

Early in the morning of June 21, 2010, officers from the Kansas City, Missouri, Police Department were dispatched to a report of shots fired. When Sergeant Gregory Williams arrived at the scene, he observed a red Dodge automobile riddled with bullet holes exiting an apartment complex. The car was driven by Montgomery, who was the sole occupant of the vehicle. Sergeant Williams began to follow the red Dodge, which soon drove away in excess of the speed limit and ran several stop signs.

After a few blocks, the red Dodge crashed into a parked car, and Montgomery fled on foot. Sergeant Williams pursued, and Montgomery was taken into custody about 100 yards from the crash site. After apprehending Montgomery, Sergeant Williams returned to the crash scene to check the car for any injured persons. Finding none, he conducted a second scan of the car with his flashlight and observed a Glock 17 9–mm pistol on the front seat of the vehicle. The gun was not loaded and did not contain a magazine. Montgomery was arrested after a computer check showed that he was a convicted felon.

Montgomery subsequently was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Montgomery pled not guilty and represented himself with stand-by counsel at trial. At the close of the Government's case in chief, Montgomery orally moved for a judgment of acquittal, which the districtcourt denied. At the conclusion of trial, the jury convicted Montgomery.

The Presentence Investigation Report (“PSR”) classified Montgomery as an armed career criminal based on three prior convictions for violent felonies or serious drug offenses, all in Missouri: second-degree assault in 1993, sale of a controlled substance in 1998, and second-degree domestic assault in 2007. This classification subjected Montgomery to a mandatory minimum sentence of 180 months under the ACCA. The PSR also applied an armed career criminal enhancement, United States Sentencing Commission, Guidelines Manual, § 4B1.4 (Nov. 2012), raising Montgomery's offense level from 28 to 33. Montgomery's resulting Guideline range was 188 to 235 months. Montgomery filed pro se objections to several portions of the PSR, including the paragraph discussing his second-degree domestic assault conviction.

During sentencing, Montgomery elected to be represented by his stand-by counsel. The Government requested an upward variance to a sentence of 328 months. Montgomery's counsel argued he should not be subject to the armed career criminal enhancement or the ACCA mandatory minimum sentence because his second-degree domestic assault conviction was not necessarily a violent felony. Alternatively, Montgomery requested the mandatory minimum sentence of 180 months. The district court concluded that the PSR correctly calculated the Guideline range and imposed a sentence of 188 months, at the bottom of the Guideline range. Montgomery now appeals his conviction and sentence.

II.

Montgomery challenges his conviction on the grounds of insufficient evidence. “We review challenges to the sufficiency of the evidence de novo, resolving all evidentiary conflicts in favor of, and accepting all reasonable inferences that support, the jury's verdict.” United States v. Tucker, 689 F.3d 914, 918 (8th Cir.2012). We will affirm the verdict “if any rational jury could have found the defendant guilty beyond a reasonable doubt.” United States v. Ojeda–Estrada, 577 F.3d 871, 874 (8th Cir.2009), cert. denied,––– U.S. ––––, 130 S.Ct. 1112, 175 L.Ed.2d 924 (2010).

Possession of a firearm by a convicted felon requires that the Government prove (1) previous conviction of a crime punishable by a term of imprisonment exceeding one year, (2) knowing possession of a firearm, and (3) the firearm was in or affecting interstate commerce. 18 U.S.C. § 922(g)(1). Montgomery challenges only the second element, arguing that because there was no witness to his possession of the firearm and no fingerprint or DNA evidence linking him to the weapon, there was no evidence that he knowingly possessed the firearm.

“Constructive possession of a firearm ... may be established with circumstantial evidence.” See United States v. Butler, 594 F.3d 955, 965 (8th Cir.2010). Here, Montgomery fled, first by vehicle and then on foot, when police began to follow his vehicle. Montgomery was the sole occupant of the vehicle at the time, and the pistol was discovered on the passenger seat in plain view. Even absent eyewitness or forensic evidence establishing possession, a jury could reasonably conclude from these facts that Montgomery was fleeing from police because he illegally possessed a firearm. See United States v. Varner, 678 F.3d 653, 657 (8th Cir.2012) (holding that a juror could reasonably infer illegal possession of a firearm where a defendant fled from police, and also holding that forensic evidence is not necessary for a felon-in-possession conviction);see also United States v. Arrington, 215 F.3d 855, 856–57 (8th Cir.2000) (upholding felon-in-possession conviction where driver fled after high speed chase and inventory search found a shotgun in the hatchback); United States v. Hiebert, 30 F.3d 1005, 1009 (8th Cir.1994) (upholding felon-in-possession conviction where driver “had control over the rifle, as it was found in the vehicle that he was driving”). Viewing the evidence in the light most favorable to the verdict, we conclude that a reasonable jury could have found Montgomery guilty beyond a reasonable doubt.

III.

Montgomery presents three challenges to his sentence. First, he argues that the district court erred by classifying his prior conviction in Missouri for second-degree domestic assault as a “violent felony” under the ACCA. Second, Montgomery argues that the application of the ACCA resulted in a sentence that was unreasonable in violation of 18 U.S.C. § 3553(a). Finally, Montgomery argues that his sentence was grossly disproportionate to his crime in violation of the Eighth Amendment.

A.

Montgomery argues that his conviction for second-degree domestic assault in Missouri, Mo.Rev.Stat. § 565.073, should not be considered an ACCA predicate offense. Inappropriate application of the ACCA would constitute procedural error. See United States v. Walker, 555 F.3d 716, 721–22 (8th Cir.2009). “In reviewing a sentence for procedural error, we review the district court's factual findings for clear error and its application of the guidelines de novo.” United States v. Barker, 556 F.3d 682, 689 (8th Cir.2009).

“The first step in determining whether a crime constitutes a violent felony under the ACCA is to identify the proper category for which the defendant was convicted.” United States v. Wilson, 568 F.3d 670, 672 (8th Cir.2009). “Where ... the statute of conviction criminalizes multiple kinds of behavior, we must identify the proper category that embraces the defendant's conviction.” Id. Section 565.073 contains three subsections, criminalizing both purposeful and reckless behavior. CompareMo.Rev.Stat. § 565.073.1(1) (“Attempts to cause or knowingly causes physical injury”), with Mo.Rev.Stat. § 565.073.1(2)–(3) (“Recklessly causes ... physical injury”). In United States v. Jones, 574 F.3d 546, 552 (8th Cir.2009), we held that a conviction for knowing second-degree domestic assault under subsection 565.073.1(1) constitutes a violent felony under the ACCA. We reject Montgomery's argument that the sentencing record is silent as to which subsection of 565.073 he violated, and instead find that his conviction arose under subsection 565.073.1(1), an ACCA predicate offense.³

Montgomery is correct that the judgment from his domestic assault conviction, which the Government introduced at trial, does not indicate which subsection of 565.073 he violated. The PSR, however, states that “[a]ccording to the charging document” for the domestic assault conviction, “the defendant knowingly caused physical injury....” The only subsection of the Missouri statute that criminalizes knowing conduct is subsection 565.073.1(1), a violent felony under the ACCA. Jones, 574 F.3d at 552. “This court has repeatedly held that unless a defendant objects to a specific factual allegation contained in the PSR, the court may accept that fact as true for sentencing purposes.” United States v. Oaks, 606 F.3d 530, 541 (8th Cir.2010) (quotation and citation omitted); see also United States v. Menteer, 408 F.3d 445, 446 (8th Cir.2005)(per curiam)(holding admitted facts in the PSR may establish that a prior conviction is an ACCA predicate offense). Thus, the PSR's description of Montgomery's domestic assault...